Madras High Court
Krishnan, Vijayakumar, Johnson, M. ... vs State, Represented By Inspector, ... on 4 September, 2002
Author: A.K. Rajan
Bench: A.K. Rajan
JUDGMENT A.K. Rajan, J.
1. C.A.Nos.115 and 141 of 1992 are appeals against conviction. C.A.No.332 of 1993 is the appeal against acquittal of A.4.
2. Initially, 34 accused were charged under Section 5(2) read with 5(1)(d) of the Prevention of Corruption Act and 120-B, 109, 467, 477-A I.P.C. To prove the charges, prosecution examined P.Ws.1 to 108, Exs.P.1 to P.886 and M.Os.1 to 24 were marked. On the side of the defence, Exs.D.1 to D.9 were marked. After considering the evidence on record, the Additional Chief Judicial Magistrate and Special Judge acquitted 19 accused; 15 accused were convicted. All the convicted persons have filed appeal challenging their conviction.
3. C.A.No.115 of 1992 has been filed by A.2, A.3 and A.5; C.A.No.116 of 1992 has been filed by A.18; C.A.141 of 1992 has been filed by A.12 to A.17 and A.19 to A.22; C.A.142 of 1992 has been filed by A.1; the State filed C.A.No.332 of 1992 against the acquittal of A.4.
4. Pending appeal, A.1 and A.18 died; Therefore, C.A.No.142 of 1992 and C.A.No.116 of 1992 abated. A.22 is also dead, hence C.A.141 of 1992, in so far as the appeal filed by him, abates.
5. The facts of the case in brief is as follows:-
(i) A.1 was the Divisional Engineer, Highways Department, Kanyakumari; A.2 was the Assistant Engineer (Rural Roads); A.3, A.4 were the Junior Engineers; A.5 was the Section Officer, A.6 was the Divisional Accountant in Rural works Division;/ A.7 was the Assistant in the Special Division (Rural Roads), Thakkalai; A.8 was the draughtsman in the Divisional Office, Highways; A.9 and A.10 were the draughtsmen; A.11 was the Assistant; A.12 to A.34 were the contractors.
ii) As per G.O.1212, dated 17.6.1972, an amount of Rs.28.39 lakhs was sanctioned for laying certain new road and improving certain roads. A.4 joined duty in the Special Division on 12.7.1972 and he was relieved on 18.4.1973. In the meanwhile, on 23.3.1973, to conduct a preliminary enquiry, an order was passed by D.V.A.C. Thereafter, on 24.4.1973, a detailed enquiry was ordered. The detailed enquiry was conducted by B.D.Jayaraman; he filed a report. Based on that, a complaint was registered on 27.11.1974; thereafter, investigation proceeded; for the purpose of aiding in the investigation, D.V.A.C. requested the Chief Engineer to depute some officers for conducting checks; Accordingly, P.W.81 was deputed. He took nearly 200 samples from various places between 22.3.1975 and 1.5.1976. They were sent to Highways Research Station for testing; Test Report was received on 14.2.1977 from the Highways Research Station. After obtaining sanction, the prosecution was launched. In all about, 131 charges were framed.
(iii) After trial, the trial Court
(a) acquitted all the accused of the charge under Section 120-B I.P.C.
(b) A.2 was found guilty of charges-2, 16, 20, 28, 32, 44, 48, 66, 70, 78, 82, 96 and 100 and was convicted under Section 5(1)(d) read with 5(2)(d) of the Prevention of Corruption Act and was sentenced to undergo 2 years R.I. and imposed a fine of Rs.100/-; A.2 was also found guilty of the charge Nos.30, 34, 38, 42, 46, 50, 80, 84 and 102, convicted for the offence under Section 477-A I.P.C. and was sentenced to undergo one year R.I.
(c) A.3 was found guilty of the charge Nos.2, 28, 32, 78 and 82, and convicted under Section 5(2) read with 5(1)(d) and sentenced him to undergo two years R.I. and a fine of Rs.500/-; further, he was also found guilty of the charge Nos.30, 34, 38, 42, 80 and 84 and convicted under Section 477-A I.P.C. and was sentenced to undergo one year R.I.
(d) A.5 was found guilty of the charge Nos.16, 20, 44, 48, 66, 70 and 100, convicted under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act and was sentenced to two years R.I. and was imposed a fine of Rs.100/-; he was also found guilty of the charge Nos.46, 50 and 102, convicted under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act and 477-A (three counts) I.P.C. and sentenced to one year R.I.
(e) A.12 to A.22 were found guilty, convicted under Section 5(1)(d) read with 5(2) of the Prevention of Corruption Act and 109 and 477-A I.P.C. and were sentenced to two years R.I. and were imposed a fine of Rs.100/-.
(f) Accused-4, 6 to 11, 23 to 29, 31 to 34 were found not guilty and were released.
6. The construction was done in the year 1972; the samples were taken between 22.3.1975 and 27.6.1975. These samples were sent for chemical analysis; P.W.86, Research Assistant (Concrete), Highways Department, Guindy tested the cement content and sent his report, Ex.P.628; He has spoken about the details as to how the test was conducted. He followed A.S.D.M. method for analysis. He has stated that he would take representative samples for analysis and after analysis, he sent the report, Ex.P.628.
Criminal Appeal No.115 of 1992:
7. The counsel for the appellant submits that the construction work was done in the year 1972 and the samples were taken in 1975 and 1976; 3 to 3 1/2 years after construction. The quality of the sample would definitely vary and that would not conform to the standard; Even P.W.86 has admitted this in the cross-examination. Therefore, the Test Report of the samples which were taken after 31/2 years cannot be the basis to arrive at a conclusion that the construction was not done in accordance with the standards prescribed. Further, the counsel for the appellant submits that the samples were taken only with the help of coolies using pickaxe, etc. Therefore, the result of test of such samples would not reflect the real standard of construction. Therefore, on this ground also the conclusion arrived at by the trial Court finding the accused guilty is not sustainable. The counsel submitted that the witness, P.W.86 has stated that under such circumstances, the entire block should be removed as a whole and should be sent for analysis. Therefore, the counsel submitted that only when samples were taken in that manner, the test will reflect the real condition. P.W.1 in his evidence has stated that the Departmental Manual does not specify the method of taking samples. Therefore, it cannot be faulted merely because the samples were taken by coolies. The samples taken at various places were not used as such for testing. P.W.6 in his evidence has stated, "from the samples received for analysis, we will take representative samples". Representative samples means the samples which would be fit for analysis or which can be tested to find out the real combination. When the expert conducts a test, it should be presumed that he has taken all precautions before testing a particular sample.
8. Therefore, taking of representative sample means and implies that the analyst had taken that portion of mortar that will represent the mortar used for building the walls. Therefore, merely because coolies or unskilled labourers were used to take samples, it cannot be said that the test result will not reflect the correct situation. Therefore, this argument of the counsel for the appellant is rejected.
9. Though number of charges were framed even with respect to laying of roads etc., the conviction is only on the basis of the test report of the samples taken from the parapet walls constructed using random rubbles. The trial Court has convicted the accused only as it found the cement mortar used for the construction did not satisfy the standards. With respect to other charges in respect of laying of roads etc., they were not found against any of the accused; also there is no appeal against such acquittal.
10. The counsel for the appellant submitted that in so far as the charge under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act against A.2 and A.3 only, Charge Nos.2 and 28 are framed; The samples were taken on 5.3.1976, that is after three and 3 1/4 years. The corresponding "M" books are Exs.P.91 and 101; The estimate of loss was prepared in Ex.P.620 by P.Ws.81 and 83 who were staff members of the Vigilance and Anti-Corruption Department, during the period when they prepared these estimates; therefore, Ex.P.620 is hit by Section 162 Cr.P.C., as they are also part of the investigation and therefore, that report cannot be relied upon to prove the charges against the accused; Further, as admitted by P.W.81 that this report was not based upon Ex.P.628; that is the estimate of loss arrived at in Ex.P.620 is not based upon the Analyst Report; therefore, Ex.P.620 cannot be relied upon. In support of his argument, the counsel relied upon the decision of the Supreme Court in Chenga Reddy v. State of A.P. . The Supreme Court held in that case, as follows:
" This report is the sheet anchor of the prosecution case, but in our opinion, it could not have been relied upon as it was clearly inadmissible in evidence and the opinion of the High Court to the contrary is not acceptable. P.W.12 Shri K.Ram Mohan Rao was serving in the Irrigation Department when he was entrusted with the task of assisting the investigating officer of ACB during the investigation in this case. Perusal of Ex.P.32 shows that he had been issued specific orders to report to the ACB and assist the investigating agency. He prepared his report Ex.P.12 during the course of the investigation and submitted it to P.W.19, the investigating officer on 30th June, 1984 after the FIR in this case. Ex.P.24, was registered by P.W.19 on 17.5.1982. P.W.12 was examined by the investigating officer after he had submitted the report and his report, forms a part of his statement recorded by ACB under Section 161 Cr.P.C. Under these circumstances, the observations contained in report Ex.P.11, which technically and factually form a part of the statement of P.W.12, recorded during the investigation of the case by P.W.19 is, hit by Section 162 Cr.P.C. "
The counsel also relied upon the decision in State of Himachal Pradesh v. Jai Lal where the Supreme Court has held that expert evidence must show that the expert has skill and adequate knowledge of the subject. The Supreme Court has held, " An expert is not a witness of fact. His evidence is really of an advisory character. The duty of an expert witness is to furnish the Judge with the necessary scientific criteria for testing the accuracy of the conclusions so as to enable the Judge to form his independent judgment by the application of this criteria to the facts proved by the evidence of the case. The scientific opinion evidence, if intelligible, convincing and tested becomes a factor and often an important factor for consideration along with the other evidence of the case. The credibility of such a witness depends on the reasons stated in support of his conclusions and the data and materials furnished which form the basis of his conclusions. "
Ex.P.620 is a report prepared by the person who was a member of D.V.A.C. He was an engineer in Highways Department; his services were deputed to D.V.A.C. After preparing the Report, Ex.P.620, he was examined by Investigating Officer. The Supreme Court in the very same paragraph has further held as follows:
" No statement made by any person to a police officer during the course of investigation can be used for any purpose at any enquiry or trial in respect of any offence under investigation at the time when such statement was made, except for the purpose of contradicting a witness as provided under Section 145 of the Evidence Act. Admittedly, Ex.P.11 has not been used for any of the purposes envisaged by Section 145 of the Evidence Act, but as a substantive piece of evidence. The opinion of the Courts below that the statement contained in Ex.P.11 was not hit by Section 162 Cr.P.C. on the ground that P.W.12 was an expert within the meaning of Section 45 of the Evidence Act and his report Ex.P.11 submitted to the investigating officer was as such not hit by Section 162 Cr.P.C. is clearly erroneous as P.W.12 does not qualify as an expert within the meaning of Section 45 of the Evidence Act. Even in his own deposition,he has nowhere stated about his technical "qualifications, "expertise" or "experience" in this particular field to render "expert opinion". There is no material on the record to show that P.W.12 possessed any particular skill which entitled him to "draw conclusions" relevant to the matter entrusted to him by the investigating officer. We are, therefore, of the opinion that P.W.12 is not an "expert" within the meaning of Section 45 Evidence Act and Ex.P.11 was hit by the bar of Section 162 Cr.P.C. and was inadmissible in evidence and could not have been relied upon in the criminal trial to fasten criminal liability on the appellants."
From the above passage, it is clear, there was no material on record to show that that witness possessed any particular skill which entitled him to draw conclusion relevant to matters entrusted to him. Therefore, it held, he was not an expert within the meaning of Section 45 of the Evidence Act. But in the present case, P.W.81 was deputed to the D.V.A.C. only on the reason that he was an expert in that field where they wanted the expert's opinion in order to arrive at certain conclusions. Further, in the case before the Supreme Court, there was no material on record to show that he possessed any particular skill to call him as an expert. But, in the present case, P.W.81 has stated that he was an expert in that field, as he was holding the post of Divisional Engineer, Highways. Therefore, the evidence of P.W.81 will fall squarely within the definition of Section 45 of the Evidence Act. Though P.W.81 has answered to some of the questions put in the cross-examination which may not be correct, yet such answers are not on vital aspects. His evidence on important aspects is very clear and therefore, he is in the status of an expert witness. Therefore, his evidence as well as his report, Ex.P.620 is not hit by Section 162 Cr.P.C. Therefore, the reliance placed on this report by the trial Court is not illegal. Therefore, the estimate of loss given in Ex.P.620 is admissible in evidence. Further, P.W.81 has also stated that his estimate of loss is not based only on Ex.P.628, the Analysis Report. The counsel for the accused submitted that since the work sheet accompanying the report, Ex.P.628 was not available in Court, they were greatly prejudiced while cross-examining that witness. Inasmuch as P.W.81 has stated that his report is not based on Ex.P.628, the non-availability of the worksheet of the analysis will not affect the case. Even otherwise, the worksheet would be used for the purpose of pointing out mistakes in calculations, if had been committed by the Analyst while arriving at the conclusions. A perusal of Ex.P.628 would show that even if he had erred in arriving at certain calculations, it may at the most be only marginal in the ultimate conclusion of finding the proportion of cement used in which case at the most it can be said that is the actual amount of loss.
11. Against A.2 and A.5, Charge No.16 was held to be proved based on the "M" Book-883-A, Ex.P.171; Charge No.20 was held to be proved based on "M" Book, Ex.P.113; Against A.2 and A.3, Charge No.32 was found proved based on Ex.P.114 ("M" Book); in all these cases, the samples were taken after 3 1/2 years. Against A.2 and A.5, Charge No.44 was held to be proved based on Ex.P.104, the "M" Book; and Charge Nos.44 and 48 were held to be proved on the basis of Ex.P.179; Charge No.66 were found guilty of Charge No.78. All these charges relate to offence under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act. The counsel appearing for the accused contended that Ex.P.620 is inadmissible and hence, there is no evidence to prove the exact loss sustained by the department. This argument is acceptable. To find out the exact amount of loss, there is no evidence before the Court. But, the report, Ex.P.628 proves that the cement mortar did not conform to the standard prescribed instead of 1:6 what was used was 1:11 to 1:19. From this, it is proved that loss has been caused to the department, the actual amount of loss sustained may not be correctly arrived at, yet the fact that the State incurred loss is proved by Ex.P.628, Analyst Report which proves that lesser percentage of cement was used. To hold that an offence under Section 5(2) read with 5(1)(d) of the Prevention of Corruption Act, it is not mandatory to prove the actual amount of loss. Proof of actual loss or gain in not sine qua non, in case of offence under Section 5(2) read with 5(1)(d) of the Act. Therefore, from Ex.P.628, it is proved that the department has sustained loss.
12. The counsel for the accused submitted that to prove an offence under Section under Section 5(1)(d), it is necessary to prove that the accused had dishonest intention while he has committed the alleged act. In support of this proposition, the counsel relied upon the judgment in M.Narayanan v. State of Kerala , the Supreme Court has held, " 'Abuse' means mis-use, i.e., using his position for something for which it is intended. That abuse may be by corrupt or illegal means or otherwise than those means. The word, 'otherwise' has wide connotation and if no limitation is placed on it, the words, 'corrupt', 'illegal', and 'otherwise' mentioned in the clause become surplusage, for that construction every abuse of position is gathered by the clause. So some limitation will have to be put on that word and that limitation is that it takes colour from the preceding words along with which it appears in the clause, that is to say, something savouring of dishonest act on his part. ..............
The juxtaposition of the word, "otherwise" with the words, "corrupt or illegal means" and the dishonesty implicit in the word, "abuse" indicate the necessity for a dishonest intention on his part to bring him within the meaning of the clause. "
He further relied on the case, S.K. Kale v. State of Maharashtra , wherein it was held, " The abuse of position must necessarily be dishonest, so that it may be proved that the appellant caused deliberately wrongful loss to the Army by obtaining pecuniary benefit for P.W.2. "
The same view was followed in S.P.Bhatnagar v. State of Bhatnagar , the Head Note of which is as follows:
" The abuse of position in order to come within the mischief of S. 5(1)(d) must necessarily be dishonest so that it may be proved that the accused caused deliberate loss to the department. It is for the prosecution to prove affirmatively that the accused by corrupt or illegal means or by abusing his position obtained any pecuniary advantage for some other person. "
Therefore, to hold that the accused are guilty of the offence under Section 5(1)(d), the prosecution must prove the dishonest intention on the part of the accused while discharging their dues, viz., while recording these, "M" books. But, there is no evidence to show that these entries were made in the "M" books with such dishonest intention. Therefore, there is no evidence that the accused have done this act with dishonest intention and therefore, the lower Court is not correct in holding that the offence under Section 5(1)(d) had been made out.
13. The learned counsel for the appellant further submitted that mere entries made in the "M" books or that the fact that the work was executed in flagrant disregard of the relevant rules, the said disregard did not amount to any of the offence under Section 5(1)(d) of the Act. In support of his contention, the learned counsel referred to the judgment of the Supreme Court in Abdulla Md. v. State (Union Territory of Goa) (1980 Crl.L.J. 220), wherein it has been held, " But those findings merely make out that the appellants proceeded to execute the work in flagrant disregard of the relevant Rules of the G.F.R. and even of ordinary norms of procedural behaviour of Government officials and contractors in the matter of execution of works undertaken by the Government. Such disregard however has not been shown to us to amount to any of the offences of which the appellants have been convicted. The said findings no doubt make the suspicion to which we have above adverted still stronger but that is where the matter rests and it cannot be said that any of the ingredients of the charge have been made out. "
Relying upon these decisions, the counsel submitted that beyond proving the fact that these entries were made in "M" books, no evidence is on record to prove that it was done with dishonest intention. Therefore, the finding of the trial Court is liable to set aside on this ground also. As per the rules, the Work Inspectors shall be at the spot where the work is executed. P.Ws.33, 37, 40 were all Road Inspectors attached to these projects. They have stated in their evidence that they were not allowed to go to the spot when the work was in progress and they were given work in the office of the accused-2 to 5. They have also stated that they were asked to certify that the work was done properly. Only based upon this report given by the Road Inspectors, the "M" books have been entered by A.1 to A.4. The fact that the Road Inspectors were not permitted by these accused who had the responsibility and authority to depute them to supervise the work while in progress proves the dishonest state of mind on the part of the accused. It is not mere entry in "M" books disregard of the rules, but something more than that; it is the deliberate act not to find out the defects, if any, during the execution of the work. Therefore, the evidence available on record satisfies the test laid down by the Supreme Court in the above decisions. The report Ex.P.628 proves that the cement mortar did not conform to the standard prescribed, but lesser per percentage cement was used, definitely, a loss has been caused to the department though not the amount of loss may not be correctly arrived at, yet the factum that the State incurred loss can be arrived at. Therefore, the estimate, Ex.P.620 though cannot be taken in its entirety, still it shall be taken that a loss has been sustained in view of the fact that Ex.P.628, Analyst Report proves that lesser percentage of cement was used.
14. The mere fact that P.Ws.81 and 83 serving in the Vigilance and Anti-corruption Department during a certain period or during the period when the matter was being enquired by the department, it does not in any way hit by the provisions of Section 162 Cr.P.C. They have prepared this estimate as an expert. Their service as Junior Engineer was only required for the purpose of preparation of this estimate by the department. Merely because they were working on deputation in the D.V.A.C. department, their estimate cannot be rejected.
15. So far as A.2 and A.5 are concerned, Charge No.16, "M" book-883-A, Ex.P.171, this sample was also taken after 3 1/2 years. Regarding Charge No.20-"M" Book, Ex.P.113, sample was taken on 12.6.1976 after 3 1/2 years. Regarding a.2 and A.3, Charge No.32, Ex.P.114 is the "M" Book. Wall was constructed on 14.2.1973; sample was taken on 12.6.1976 after 3 1/2 years. A.2 and A.5-Charge No.44, Ex.P.104 is the "M" Book. A.2 and A.5, Charge Nos.44 and 48, P.179; A.2 and A.5, Charge No.66, P.198; A.2 and A.5, Charge No.70, P.157; A.2 and A.3, Charge No.78. It was held to be proved for the offence under Section 5(2) read with (d) of the Prevention of Corruption Act.
16. Exs.P.91, 101, 171, 113, 253, 114, 104,179, 18, 102, 106, 97, 222 proved that A.2 has committed the offence specified under Section 5(2) read with 5(1)(d) of the Prevention of Corruption Act.
b) Exs.P.91, 101, 253, 244, 264, 260, 116, 118, 114, 106, 108, 234 and 247 proved the guilt of A.3.
c) Exs.P.171, 113, 104, 186, 179, 198, 102, 157 and 222 proved the guilt of A.5.
17. So these exhibits prove that measurement were recorded in the "M " books as if 1:6 mortar were used. The test report Ex.P.628 proves that it was not of 1:6, but it varied from 1:11 to 1:23. For the reasons stated above, though the exact amount of loss has not been arrived at correctly, yet due to the lesser ratio of the cement, it is not difficult to conclude that the loss has been incurred by the department.
18. The counsel for the appellant submitted that the witness himself has admitted that the original work-sheet was not available in the Court records; not even a copy was available. Therefore, prejudice is caused to the accused, because of the non-furnishing of test report. It is true that the original report sent to the Court is not found at the time of examination of witnesses. The reasons are not known. But, at the same time, it cannot be accepted that it has caused prejudice to the accused. The witness has clearly stated that his conclusion is only on the basis of test analysis; that is each sample has been tested and he has given that finding. There is a legal presumption that the analyst has given his finding, in accordance with the test results. What is not available is the actual figures of the test analysis which were used for arriving at the conclusion. This does not in any way said to have caused prejudice to the accused. Even today, if the accused are so desiress, they can take sample from the very same parapet walls and send for analysis in which case, only the strength of the wall will be different, but the percentage of cement, in the mortar or the sand cement ratio will not vary. Therefore, the argument that prejudice has been caused has no force.
19. The counsel for the appellants further pointed out that Ex.P.139, Test Check Report, dated 22.7.1974 was prepared by P.T. Jayaraman. During the trial, he was not alive. Therefore, it was marked through another witness, P.W.13. This was objected to on the ground that the original is not marked. This argument of the counsel for the appellant is acceptable as per the Evidence Act that only originals are to be marked as exhibits. In case, the originals are not available, secondary evidence can be let in, as specified under the Evidence Act. But, no such evidence has been adduced and hence, secondary evidence cannot be admitted in evidence. Though an objection has been raised while marking this evidence, that was over-ruled by the trial Judge. Such an objection should have been sustained, in the absence of any explanation for marking the secondary evidence. But, this does not in any way affect the case of the prosecution; test report of P.T.Jayaraman is not relied upon to prove the offence under Section 5(2) read with Section 5(d) of the Prevention of Corruption Act. Therefore, even excluding Ex.P.139, the prosecution case does not get weakened for the reasons already stated that the fact that there was loss, is sufficient to prove the offence under Section 5(2) read with Section 5(i)(d) of the Prevention of Corruption Act. Therefore, these exhibits referred to above prove that false measurements with respect to the ratio of cement mortar used while constructing the parapet wall using random rubbles is proved.
20. The counsel for the appellant submitted that the learned Judge has found that inferior quality of cement was used. But, absolutely there is no evidence to prove that the cement that was used was of inferior quality. This argument of the counsel for the appellant is acceptable. No one can say about the quality of the cement unless it is tested. There is no proof of the cement having been sent for any test. In the absence of any such finding in the test report, the finding that inferior quality of cement was used has no validity. But this finding of the trial Court, does not in any way affect the result of the case. Out of over-enthusiasm, the learned Special Judge has stated that inferior quality of the cement was used. The test report only says that cement mortar was not in accordance with the proportion prescribed. No test has been made to find out the strength of the mortar. Therefore, the finding that inferior quality of the cement was used is not only unnecessary but also not supported by any evidence. The learned Public Prosecutor submitted that bills were not produced by the Contractor to the Junior Engineer to show that quality cement was purchased; it proves that the cement used were of inferior quality. This argument has to be rejected. Merely because a bill is produced, a bad quality of cement cannot become a good quality. Further, as stated above, cement cannot be certified as good quality cement, unless it is tested in the laboratory. The Junior Engineer has given certificate that good quality of cement was used. This certificate also worth nothing; therefore, this part of the judgment is unnecessary.
21. It is not possible to assess the actual loss, because of the lesser ratio of cement was used in the construction for the reasons stated above. Further, to prove the offence under Section 5(2) and (d) of the Prevention of Corruption Act, it is not necessary that actual loss should be proved. It is sufficient if it proved that loss has been sustained by the department.
22. In so far as the offence under Section 477-A is concerned, the charge is that in the measurement books, false measurements and check measurements in respect of the work stated above have been entered and therefore, it is an offence under Section 477-A. The measurement does not mean merely linear measurements; it also means particulars of proportion of the cement mortar used. When the cement mortar used was not 1:6, but was varying from 1:11 to 1:23; the records contained particulars that cement mortar of 1:6 was used. Therefore, it amounts to an offence under Section 477-A I.P.C. Even making a false entry into the books of accounts maintained in any department or office amounts to an offence under Section 477-A I.P.C. Merely entering cement mortar was used 1:6 when in fact that was not the ratio that was used is sufficient to prove the offence under Section 477-A. All these measurement books referred to above contains a statement that the cement mortar that was used was 1:6; but the test result proved that the standard ratio was not used; the ratio ranged from 1:11 to 1:23. Therefore, making these entries in the "M" books constitutes and proves the offence under Section 477-A I.P.C.
23. The conclusion of the lower Court that the offence under Section 477-A has been made out cannot be said to be illegal. Therefore, the conviction of A.2, A.3 and A.5 cannot be said to be illegal. Hence, it is confirmed.
Criminal Appeal No.141 of 1992:
24. The appellants, A.12 to A.17 and A.19 to A.21 were the contractors entrusted with the work of construction of these parapet walls. It is proved from the above discussion that cement mortar of lesser ratio was used, but amount was collected for higher ratio. These amounts were collected only by these contractors. Therefore, the accused-1 to 5, by illegal and corrupt means or by otherwise abusing their position enabled these appellants to gain pecuniary advantage. Therefore, the offence under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act read with Section 109 and 477-A I.P.C. is proved. The trial Court has rightly found these accused guilty of the said offence. For the reasons stated supra, the conviction against these accused is confirmed.
25. C.A.No.332 of 1993: This is an appeal against acquittal of A.4. The learned Sessions Judge acquitted A.4 on the ground that sanction given for prosecution of A.4 is not valid. The Public Prosecutor argued that the same sanction order was found to be valid with respect to other accused, but only against A.4 it was held not valid. The learned Sessions Judge has held that the sanction order against A.4 is invalid on the ground that the name of A.4 is not found in the F.I.R.; while F.I.R. was filed on the basis of the report by P.T. Jayaraman and when no acquisition was made against A.4, it is not known as to what were the other materials placed before the sanctioning authority. Therefore, the entire facts were not placed before the sanctioning authority before granting sanction. Therefore, the sanction order in so far as it relates to A.4 was held invalid. In Ex.P.860, it is stated as follows:
" And whereas on a careful consideration of the facts placed before them by the Director of Vigilance and Anti-corruption, Madras, the Government of Tamil Nadu are satisfied that:-
(i) there is a prima facie case of criminal conspiracy against the said officials and others punishable under Section 120-B and offences under Section 5(1)(d) punishable under Section 5(2) of the Prevention of Corruption Act for obtaining pecuniary advantage for themselves aided by the Contractors, and offences punishable under Section 477-A and 477-A read with 109 I.P.C., and
(ii) that criminal proceedings should be initiated against them for the said offences and of any other offences.
Now therefore (1) in exercise of the powers conferred by Sections 196(2) and 197(1)(b) of the Code of Criminal Procedure, 1973, and Section 6(1)(b) of the Prevention of Corruption Act, 1947 (Central Act II of 1947), the Governor of Tamil Nadu hereby sanctions the prosecution of the said officials (Tvl.V.N.Ramadoss Rao, K.Krishnan, P.G.Vijayakumar, V.P.Subramaniam, S.Johnson, D.Balasubramaniam, A.Natesan, J.Selvaraj, S.Esakki, S.Sundaram, N.Kaliyugathumeyya Pillai, V.Amose, and Tmt.N.Parvathi) for the said offences and for any other offences punishable in the said enactments for the said acts and for taking cognizance of the said offences by a Court of competent jurisdiction."
The above recital in the sanction order reveals what are the materials placed before the sanctioning authority, for the purpose of granting of sanction for prosecution. The learned Sessions Judge has held, the sanction with respect to all other accused as valid, but held it is invalid only against A.4. Merely because the name of an accused is not found in the F.I.R., it does not mean that he cannot be arrayed as an accused in that case; after investigation, if any other person whose name is not mentioned in the F.I.R. is found to have been involved in that offence, that person can also be arrayed as an accused. The F.I.R. is not the be-all and end-all of a case. The finding of the lower Court that because ones name is not found in the F.I.R. the sanction order against him becomes invalid is not legally sustainable, to put it in mild words.
26. The counsel appearing for A.4 submitted that preliminary enquiry was conducted in the year 1972; subsequently, a detailed enquiry was also conducted on 29.5.1973; with the assistance of Jayaraman, a report was filed on 22.7.1974. Only subsequent to that report, F.I.R. was filed. Only thereafter, S.K.Subramaniam was appointed for super-checking on 6.12.1974. Super-checking was done on 25th December, 1975. A report under Ex.P.418 was given on 14.5.1976. Sanction order was passed on 19.12.1979. A.4 was not implicated even after detailed report, but only on the basis of the evidence of S.K.Subramaniam, his name was included as an accused. Further, the counsel submitted that A.K.Subramaniam was inimically disposed of towards A.4 and therefore, the evidence of S.K.Subramaniam cannot be relied upon against A.4 and therefore, the acquittal of A.4 by the trial Court is correct and, it cannot be set aside. The learned Additional Public Prosecutor submitted that P.W.81, S.K.Subramaniam during the cross-examination was not even suggested that he was inimically disposed of towards A.4. Therefore, the argument of the counsel for A.4 cannot be accepted. Only in the statement under Section 313 Cr.P.C., A.4 has come forward with this plea that P.W.81 was inimically disposed of towards A.4. In the absence of any such question put to P.W.81 when he was examined in the Court, the mere statement under Section 313 Cr.P.C. does not make it as evidence to prove the case of A.4. Therefore, there is no evidence to prove that A.4 was inimically disposed of towards P.W.81; and hence the argument that that was the reason to implicate A.4 has no force.
27. The charges against A.4 are Charge Nos.1, 92, 94, 96, 98, 126 and 128; to prove the charges, the prosecution relies on the measurement books 884-B, 882-B, 891-B and 9(1)(2)(b). In "M" book 912-B, A.4 has not signed. Therefore, he cannot be held responsible for the charges-126 and 128. With respect to other charges, "M" books 884-B, 882-B and 891-B are relied upon. The counsel appearing for A.4 submitted that the loss is attributable only to those who prepared the estimate and not those who executed the work. Further, there was difference in the measurement made by P.W.81 and the measurement found in the records; the particulars found in the measurements are only post facto and therefore, the particulars like 1:6 are only presumptions based on the report given by the Road Inspectors who were on the work spot. If the Road Inspectors had reported the fact correctly, the engineers would not have recorded that wrong figures. Therefore, it is only the Road Inspectors who should be held responsible for all these lapses and mistakes. The witnesses, P.Ws.33, 37 and 40, the Road Inspectors admitted that the Road Inspectors are expected to be present at the time of execution of the work and they have a right to stop the work when they are of the opinion that the work is not done in accordance with the standard; they have also stated that they were not allowed to go to the work spot by A.2 to A.5. But, in fact, these Road Inspectors on whom such responsibilities are conferred cannot act against the dictates of their higher-ups. But the charges now are only that the cement mortar containing less ratio of cement was used for construction. So far as that aspect is concerned, these "M" books, 884-B, 882-B, 912-B prove that A.4 had signed and certified that the cement mortar that was used was 1:6 ratio as prescribed by the department. When the test report proves the cement mortar that was used was not 1:6, but it was between 1:11 and 1:23, the entry made by A.4 in "M" books are proved to be false; therefore, the offence under Section 477-A is proved beyond reasonable doubt. Because of the lesser rate of cement used in the mortar, the department has incurred loss to that extent. Though the actual amount of loss has not been proved, it is proved that the department has incurred loss which was gained by the contractors. Therefore, for the reasons stated above, the charge under Section 5(2) read with 5(1)(d) of the Prevention of Corruption Act is also proved. That is, Charge Nos.92, 94, 96 and 98 are proved against A.4. The trial Judge was not right in acquitting the accused No.4. Though the charge under Section 120-B has been held not proved against any of the accused, still the charges under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act stand. It is not as if from the evidence of record, the conclusion that A.4 is not guilty of the offence is also possible. That is, the conclusion arrived at by the trial Court is not plausible on the evidence on record. That A.4 was guilty of the charges is the only conclusion plausible from the evidence on record. When a conclusion was not germane from the evidence on records such a finding of the trial Court is perverse. Therefore, the acquittal of A.4 is liable to be set aside. Hence, the judgment of the trial Court acquitting A.4 is set aside.
28. The counsel for the appellant/accused-2, 3 and 5 submitted that A.2, 3 and 5 have been dismissed from service; they are out of employment from 1976 onwards.
Considering the long lapse of time, the sentence of imprisonment cannot be set aside.
29. The offence took place in the year 1972, 30 years have elapsed, considering the totality of the circumstances in the nature of the offence, this Court is of the view that the sentence imposed on them be reduced to imprisonment till rising of the Court and in lieu of the remaining portion of sentence of imprisonment, an additional fine of Rs.5,000/- in all may be imposed on A2, A3 and A5; an additional fine of Rs.5,000/- on A12 to A17 and A19 to A21 be imposed.
30. In so far as A4 is concerned, he was not arrested during investigation along with A2, A3 and A5. Therefore, considering the fact that the offence took place in the year 1972, this Court is of the view that it is sufficient to impose a sentence of imprisonment till rising of the Court, in addition to a fine of Rs.5,000/-.
31. The appellants may serve the sentence and pay the fine before the trial Court on or before 30th September 2002, in default, they are liable to serve three months imprisonment.
32. In result, C.A.No.332 of 1993 is allowed and C.A.Nos.115 and 141 of 1992 are dismissed.